Volume 10, Issue 1 -

When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCAA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCAA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCAA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.

There has lately been much interest in the role the liability system might play in reducing firearm deaths. In the past few years, stories of gun violence have entered the national conversation with depressing regularity. Just as regularly, there quickly follow calls for more gun control - now couched in terms of “gun safety”. A new twist on this theme appropriates the language of “responsibility” that insurance companies have traded in for over a century. At the state and federal level, legislatures have introduced bills that would require gun owners to carry liability insurance that would protect third parties from injuries associated with the use of the policyholder’s firearm. The stated aim is to induce a measure of financial responsibility congruent with the risks of firearm ownership. Those risks can be imagined in various ways, and proponents of gun insurance have offered varied rationales for a gun insurance mandate. On its most basic level, gun insurance could provide a source of compensation for victims of gun violence, or their families. At 30,000 or so fatalities a year, the economic toll of gun violence is easily quantified in the billions. Insurance companies, motivated to arm themselves with the data that governments often cannot obtain, will uncover and enforce risk reduction strategies that will mitigate gun violence. These strategies, it is commonly assumed, will turn out to look a lot like the “common-sense” gun safety regulations so regrettably stymied by timid legislators. The costs of this risk reduction program will of course be borne by gun owners themselves, in the form of insurance premia. One can discern a couple different sorts of mechanisms by which this might work. First, insurance might separate “good” gun owners from “bad” gun owners, rewarding the former with discounts or credits for socially cooperative behavior. Properly finetuned, this might place the entire burden of insurance-related gun violence on the shoulders of “bad” gun owners - those who leave loaded handguns in between the cushions of their sofas, easily accessed by small children. Or - of course - those who actually commit gun crimes. On another view, there might not really be any good or bad gun owners. Like pollution, gun violence is an inevitable by-product of gun ownership. While there might be room for insurance to make things safer, there is no moral reason to distinguish among gun owners, who all contribute to the availability of guns in marketplaces legal and otherwise. On this view, a gun anywhere is a threat public safety everywhere; liability insurance premia act as a kind of Pigouvian tax, internalizing at last the costs of gun violence into the long-term price of firearm ownership. The efficacy of this approach is open to question.

In the American legal academy, the prevailing wisdom about the rise of modern products liability law is framed by a debate which took place more than thirty years ago. George Priest’s brilliant 1985 paper The Invention of Enterprise Liability, asserted that modern American products liability law in its formative moment was enterprise liability incarnate, but condemned this commitment as itself a profound defect in products liability law. With rhetoric worthy of a Biblical Jeremiad, Priest argued that the “unavoidable implication of the three presuppositions of [enterprise liability] is absolute liability. The presuppositions themselves do not incorporate any conceptual limit to manufacturer liability.” Priest’s work was both immensely influential and sharply contested. Gary Schwartz, writing independently at first, argued that products liability law was really fault liability all along. According to Schwartz, the “vitality of negligence” was the driving force behind the expansion of tort liability over the course of the 20th century. Negligence conceptions lurked beneath product liability law’s surface embrace of strict liability. Or so Schwartz argued. Product defect liability was strict liability in name, but the risk-utility test of product defectiveness was in fact an aggressive application of negligence criteria.

Examining a previously unexplored trove of letters, this article sheds new light on the thinking and work of William L. Prosser, the past century’s leading torts scholar. In these letters to family written while dean of the University of California, Berkeley School of Law, Prosser candidly describes his approach to scholarship; the development of his casebook, the second edition of Prosser on Torts, and some of his most well-known and influential articles. Moreover, Prosser provides his often-cynical impressions of the legal process; his views of his peers at Berkeley and at other institutions; and his work as dean. The letters also demonstrate some of Prosser’s limitations, including his craving for attention, a sometimes petty personality, and racial and ethnic biases. In all, the letters capture a scholar at the zenith of professional accomplishment in his field, who nevertheless showed signs of the insecurity that would later trigger his resignation from the Berkeley deanship and retreat from the forefront of torts scholarship.